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HQ 950469




September 11, 1992

CLA-2 CO:R:C:T 950469 PR

CATEGORY: CLASSIFICATION

TARIFF NO.: 5501.90.0000

John P. Donohue, Esquire
Donahue and Donahue
421 Chestnut Street
Philadelphia, PA. 19106

RE: Classification of Carbonized (Oxidized) Polyacrylonitrile Tow; Parts of Aircraft; Articles vs. Material; Acrylic vs. Carbon Fibers

Dear Mr. Donohue

This is in reply to your letters of August 5 and September 15, 1992, on behalf of R. K. Fibers, Inc., concerning the tariff classification of Panox B . Our ruling on the matter follows.

FACTS:

According to the importer's representative, Panox B is a trade name for oxidized polyacrylonitrile tow, which is made to aircraft industry specifications. It is imported on spools or in boxes as continuous filament fibrous tow in quantities of between 250 and 380 pound units. All of the merchandise is sold for use in the manufacture of carbon disc brakes for commercial aircraft. The untreated polyacrylonitrile tow is purchased in England by RK Carbon Fibers Ltd. and then subjected to a six hour preoxidation process involving stretching and heating the material in the presence of oxygen. This results in a chemical change--the polyacrylonitrile molecules develop cross-links. The character and appearance of the fibers are changed. After importation, the tow is needled into a dense, heavy-duty felt which is heated in a high temperature oven in the presence of methane gas. The methane converts to carbon, which builds up in the felt material, resulting in a solid block of graphite. The solid block is then processed into brake linings. -2-

The importer believes that the merchandise is classifiable under the provision for parts of aircraft undercarriages, in subheading 8803.20.0010, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), or, in the alternative, under the provision for friction material of mineral substances in the form of brake linings and pads, in subheading 6813.10.0010, HTSUSA. The merchandise was apparently classified by Customs at the port of Houston under the provision for acrylic or modacrylic tow, in subheading 5501.30.0000, HTSUSA.

ISSUE:

Two issues are presented--whether the merchandise has been sufficiently advanced in condition to be classifiable as either a part of an aircraft or as brake friction material; and, if not, whether the merchandise has been processed to the point that it has ceased to be classifiable as acrylic or modacrylic fibers.

LAW AND ANALYSIS:

Imported goods are classifiable according to the General Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule of the United States (HTSUSA). GRI 1 provides that for legal purposes, classification shall be determined according to the terms of the headings in the tariff and according to any pertinent section or chapter notes. After considering GRI 2(a), it appears that GRI 1 governs the classification of the subject merchandise.

GRI 2(a), provides, in pertinent part:

Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article.

PAN tow is material that is not identifiable in its imported condition as brake linings and cannot be utilized for that purpose without substantial additional processing. It possesses neither the form nor the requisite properties to be suitable for use as aircraft brake linings. Accordingly, PAN tow does not have the essential character of complete or finished brake linings and cannot be classified as if it were complete or unfinished brake linings (in either subheading 8803.20.0010, or in subheading 6813.10.0010).

Pursuant to GRI 1, unless the PAN tow is considered to have been carbonized to the point that it has become a carbon article and ceases to be man-made fibers, it is classifiable under heading 5501, as synthetic filament tow. That heading provides:

5501 Synthetic filament tow:

5501.10.0000 Of nylon or other polyamides.........

5501.20.0000 Of polyesters.......................

5501.30.0000 Of acrylic or modacrylic............

5501.90.0000 Other...............................

Section 303.7 of the Federal Trade Commission's (FTC) regulations (16 CFR ?303.7) contains definitions of acrylic and modacrylic fibers. Acrylic and modacrylic are terms that refer to the same molecular structure, but which depend on a quantitative analysis of the material. They are defined as followed:

(a) Acrylic. A manufactured fiber in which the fiber-forming substance is any long chain polymer composed of at least 85 percent by weight of acrylonitrile units

(b) Modacrylic. A manufactured fiber in which the fiber-forming substance is any long chain synthetic polymer composed of less than 85 percent but at least 35 percent by weight of acrylonitrile units.

A Customs laboratory examined the submitted sample and determined that it did not have the characteristics of acrylic or modacrylic fibers. When asked whether the sample complied with the definitions in 16 CFR ?303.7, the laboratory reported after extensive evaluation of the sample that it contains no more than 28 percent acrylonitrile units. Therefore, the submitted sample of PAN tow does not qualify as either acrylic or modacrylic fibers as those terms are defined by the FTC.

It is Customs view that in this area, the FTC regulatory definitions should be regarded as extremely strong, if not conclusive, evidence of applicable trade designations. Accordingly, in the absence of persuasive evidence to the contrary, Customs will consider the definitions in 16 CFR ? 303.7 as establishing (or representing) the commercial designation of the terms "acrylic" and "modacrylic". -4-

Our National Import Specialist has advised that Customs has generally distinguished man-made fibers from carbon fibers by the amount of carbonization that has taken place. According to the Hoechst Celanese Dictionary of Fiber and Textile Technology (1990 ed.), a carbon fiber is

A high tensile fiber or whisker made by heating rayon or polyacrylonitrile fibers or petroleum residues to appropriate temperatures. Fibers may be 7 to 8 microns in diameter and are more than 90% carbonized.

Since PAN tow does not qualify as being either acrylic or modacrylic fibers and it is clearly less than 90 percent carbonized, the submitted sample is classifiable as synthetic fiber tow, but not as any of the specifically named fibers in heading 5501.

HOLDING:

Merchandise as represented by the submitted sample is classifiable in the basket provision for other synthetic filament tow, in subheading 5501.90.0000, HTSUSA, with duty, as a product of the United Kingdom, at the rate of 10 percent at valorem.

Sincerely,

John Durant, Director

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